UNITED REPUBLIC OF TANZANIA OF 'RATIFYING MONTREAL
PROTOCOLS NOS. 3 AND 4
BY
MADINA NGORORO
A thesis submitted to the Faculty of Graduate Studies and Research in partial fulfillment of the requirements for the degree of Master of Laws
Institute of Air and space Law, McGill University, Montreal
G)Madina Ngororo, 1986
My husband Abdallah and my twin children Hamida and Hamidu.
6 5 $
most important eXamPle of international tUlifonn' ,law established
by'a tre~ty which, despite's~ortcomings which hay~ exposed it
to criticism has nonetheless achieved wid~ acceptance and has •
survived for over half a century.
The major criticis s of the Warsaw Convention are
assessed in the light of'jurisprndence. The several attempts . to ~end the èonvention culminating in Montreal Protocols of
19'75 to correct the ambiguities disclosed by conf1icting , ,
'. jurisprudenèe and to adapt it to the -changing requirements.
"of international air t~ansport and changed conceptions of
the value of h.uman life are revie\v'ed. The legislative history
of the Montreal Protocols i9 eXë3;Jnined and the advantages and
disadvan·tages of the.se for the united Republic of Tanzania
are assessed' and conclusions reachedt'
c
aujourd'hui comme étant le meilleur exemple du droit
international uniforme élaboré sur la base dl un traité,
qui en dépit de lacunes' qu felle a comporté et qui
l'a expos~ ~ toute sorte de critiques a néanmoins été
largement acceptée par tous et survécu plus d'un demi
siêcle.
ont éte formulées en rapport avec -la jurisprudence. Les
diverses tentatives d'amendement de ,la Convention ont
donné lieu a~x protocoles de Montréal de 1975 qui ont
per.mis de corriger les ambiguités soulevées par le
conflit des jurisprudences'et d'adapter la Convention
aux Changements et exigences du transport aérien i~ter­
national et de modifier les conceptions de la valeur de la
vie humaine qui ont ét~ par ailleurs revisées. L'histoire
lêgislative des Protocoles de Montréal a été examinée.
Leurs avantages et désavantages, en ce qui concerne la
République Unie de Tanzanie 1 ont ~té déterminés et les
conclusions ont été tirées.
- a..ii - .. ..
ACKNOWLEDGEMENT
In this work l'ow~ a sp~cial.debt of g~atitude to
Professor Martin A', Bradley, whose inspiring and, tireless , "
guidance, constant encouragement, vast knowledge and expe-
rience in the field, coupl~d with his readiness to~impart
aIl the reservoir of his accurnulated experience unreserv-;-'
,ediy, helped me in directing the search for ideas and
solutions. However, l am solely responsible for the
statements written. J
through the efforts of the Governmerit of ,the United Republic . '
of Tanzania and in particular the Tanzania Directorate 'of
Civil AViation, without ~hose help this course could,not hive
been taken. To aIl these and te Mr~ Michael Challons',
_) Director of I.C.A.O. "s Technical Assistance Bureau, and
Mr. Legesse Mammo, Chief, Fellowships Section, Technical
Assistance Bureau, sincere'thanks are due.
To ?rofessor Nicolas M.Matte, Director of the
"~ Institute of Air and Space Law and the rest of the stàff
of the Institute l extend .. deep gratitude as weIl. . To the
former for his willingness to admit me,to this Institute
$
. '
wu
- iv -
of higher learning and to the latter for their deep and
sineere understanding, Eriendliness and constant encoura-
gement.
I~C.A.O. Council for his--assistance and willingness to ex-
change views on the subject, and te aIl the staff of the
McGill Law Library and those of I.C.A.O. Library for their
invaluabl~ assistance.
l am deeply indebted to Mr. and Mrs. R.E.IKimaro -
of the Ministry of Foreign Affairs, Dar es Salaam who under-
took,to take care of my interests in Dar es Salaam during,
my absence at great costs ta them~' and ta rny cou,sin
Zubeida Muro who. tirelessly' took care of 'rny twin children
whom l had to leàve behind at such a tender age o'f four -,-
years.
Last; but no doubt the least, l am indeb~ed.to
His Excellency the aigh Cornrnissioner of the'United Repùblic
s a
of Tanzania to Canada, Mr.' Ferdinand Ruhinda; Ms. Julie
Manning, Ms. Rehema Faraji and the r~st of the staff of
the United Republic of Tanzania High Commission in Ottawa
for their- in,valuable assistance and encouragemeI}t, and
speci~l thanks are due to Mrs. Sophie Gondwe who undertook
the laborious task of typing the manusc~ipt~ 'f'" ~
<' ,
THE WARSAW CONVENTION 1919 ... " ......................... .. The Provision of the Warsaw ••••• Il .................... .
The Scope of the Convention ..................................... Special types of Carriage excluded by the Warsaw Convention ..... " ........... ~ ........................ ..
Transport Doctftnents .................... .' •••••••..•.
Bodily in jury: mental anguish
Whether ~t encornpasses .......... " " .... ,. ..................... " ..
-- ." --Damages for delay ........ " ('J III! " •••• Il ................... .
. /
\ 1
Wilful Misconduct Provision ................................ Application of Article 25 in Common Law / j ur isdictions ......... 0 .................................... .
Application of Article 25 in Civilian j ur isdictions ..... ~ .................................... ..
Jurisdiction ........................................... .
Interpretation by Common Law Courts ••••••••••••••
Other Problems not Solved by The Hague Protocol
CHAPTER II.
\
98
~
;.
) Trade off for Absolute Liability and Unbreakab11 i ty ................................... . 106
Article 17: Strict Liability •••••••••..•••••••••• 108
" -Article 20: Exception from Strict Liabi1ity in Passenger Claims ................................ . 110
Amendments te Entrench the, Unbreakability of New Li.mits ." ................... ,.................. 111 . " Exception to Unbreakab1e Limi ts •••••••••..•.•...• '. 115
Courts Costs and Lawyer's Fees •• •.••••••.••.•.••.• 115
Supplementary Compensation •••••••••••••••••••.•.•• 116
Applicability of Gua<:Ia1ajara Convention ........... - 120
Effect of Ratifying Guatemala City Protocbl ....... 120
Appendix ............................... 'II ....... " ••• " " " .. 123·
CHAPTER III ..
Introduction •••••.•..••••. , .• '._ •• ; •. , • • . • . • • . . . • • . 130
The Unit of Account: SDR v. poincare Gold Franc The Poincare Gold Franc ••..•.•••••...••..•..•..... 132
The Two-tiered Gold System ....••.••• ~ • . . • . • • . . • . . • 139 ..
Judicial Application of the Go1d Clause ...•••••••• 14 7
Decisions in Favour of the Official Priee of Gold. 148
t,
/ Page
Decisions in Favour of the Mark~t Price of Gold.. 154
Decisions in Favour of the French Franc ... ., tI ..... ..
Decisions ·in Favour of the SDR . " ........ " ......... . 156
157
The 'SDR in the Warsaw System 162
Inclusion of SDR in Montr~al Protocols of 1975 •..• 166
Appendices . '" .. III ••••• " • • • • • • • • .. • • • • • • .. • • • .. • .. .. • • • • • .. • l83
CHAPTER IV.
186
192
194
Responsibility for Irregularity of Record •.•...••• 201
Negotiabi!ity of Air Waybill •••••.• ~ ••.•• 4........ 204
Liabi1ity Regime in Relation to Cargo - Doctrine of Strict Liability •.•• :....... ••.•.••• 207
Carrier's Oefences ••••••.••••••••••• ••••.••••••••• 213
Discussion in the Legal Committee - Riot, Acts of War, civi~ Commotion 214
Damage resu1ting from Official or Judicial Action 216
- Acts of Unlawful Interference with International Civil Aviation •••••••••••••••••••• •••••• ••.•.••• 216
Page
- Force Majeure and Grave Natural Disaster of an Exceptional Character .••.•..•.••.•..••... 218
- Strikes and Lockouts ..•.••.•••.•..•..•••.•...•• 219
Carrier' s Negligence ••..••....••.•.••••... ~ ...••. ' 219
Delay 1 ••••••• 'CI • " ••••• " •••••••• " ......... .- ••••••••• " • 227
A ir Ma il .... : ..... , •• ,.., ...• ~ " .. " . " " . " . " ... " ,.. ~ " .... " _ 22 9
Avoidance of Conflict between'Montreal Protocol No. 4 and the Guatema~a, City Protocol •.•.••••.••• 232
Solution to Conflict Concerning Passengers , and Mafl Provi.sions ••••.••••.••••... ~ ••.••.• '. . . • • 236
Solution to Conflict Concerning Passengers and Baggage Provisions ••••• " ••• ~ • • . • • • . • • • • • • . . • • 237
Footnote to Chapter IV ........... " . " .... " " .. " " .. " . " ,.,
CHAPTE:R V ..
ADVANTAGES AND DISADVANTAGES TO TANZANIA OF RATIFYING MONTREAL PROTOCOLS NOS. 3 & 4.
Tanzania Membership to Warsaw
Advantages to Tanzariia of Ratifying Montreal !?rotocols Nos. 3 & 4. . •••...•...•.••..•.
General Advantages ,
244
249
253
/
Advantages to Passengers
- Adequate Compensation ••••••••...••••.••••••.• 276
- Automat;j.c recovery •••••••••••....•..•••••••.•• 281
Siropl~fied ticketin9 and notice prbc-ed'ure •••••
- Se~urin9' of unbreakable limits •• n , •••••••••••
- Reduced incentive for claimants to'bring suit.
- Improved public relations •••••••••• ~ ••••••••••
Pos ta 1 items " .... If ............. " • ,. .......... " ••••
Disadvantages ta Tanzania for RatifyingMontreal Protocols Nos. 3 & 4.
- Higher limits of liability for Passengers and
288
291
292
292
294
297
299
300
Strict liabi~ity, ••••.••• _ •••••••••••.•••. ~.......303
-~- ---.-~-
......
. BIBLIOG~PHY ........................... lt • ", ...................... . v
r
1
obsevers met at Warsaw to negotiate and draft an internatio-
nal agreemeht to encourage the establishment of a secure
international civil a~iation industry. The Warsaw Convention
which was the product of that Conference provided a uniforrn
system of documenl:ation for international flights and, more
significantly, a eniform limitation on international carriers
liability to passengers, and ~hippers. International unifor- ,
mit y was natural1y, '-the touchstone of the Convention. This
can be deduced from the Preamb1e of the Warsaw Convention.
Air t'ransport was then viewed as dangerous. The'
liability limitation was deemed necessary in order to enable
air-carrier- "to attract capital-that might otherwise be sca­
red away by the fear of a single -catastrophic accident,_;' (1)
and it waS f1?Ced to a -spe,cified maxim~ 1 .. save in the casé of
wilful misconduct. -As a SUid pro quo in the' event of-àny - (
passenger being injured or any ~aggage or cargo being damaged - ,
or lost thè Conven~ion est~lish a rebuttable presumption of
the carrier's liab{lity, thus sh'ifting' the burden of proof
from-the consumer to,the carrier. The Convention further "
•
"
important e xamp le. of international uniform law established
by a treaty and despite its shortcomings, which have expo- . ,
sed it to-untold criticism and abuset particularly since the C)
World War II, it is evident that the Warsaw Convention could "
not have achieved such wide acceptance and survival for 5uch
a long ti~e without appreciable merit and' practical advant­ l '
'ages.
was extremely' advanced ~for -its time. 'It was ~imply drafted
,making it comprehensive, effective and on the whole'fair te " '
t~e different parties it concerned. Unlike other Conventions
of its time., it c:ar~ies a~ added meritl becausé- it, encornpas­
ses both the 'carriage~~ passengers)~argo and 1uggage as -opposed, ,for instance,tb the Hague R\lles whi~h cover only the , ,
carriage 'of cargo. The Convention largely e1irninates proble-
ms of conilict of substantive law and of jurisdiction-.
Severe ç:riticisms began te be heard soon, after the /
Wor1d War II. In fact in the United States, ha:r::dly a gaod
word has been heard about the ~varsaw Convention for ~any- 'years. ,( 2)
Judges took the liberty to re-write the treaty as_i~ Lisi
(1966), Warren (1965) and recent!-y in Franklin Mint (1984) (3) / '
although now reversed)and in oth~r c~ses. cs>nsequently, "
3
numerous changes in the forro of protocols, reducing the
Warsaw System into'~ "disgraceful shamble".
However, analysis of ail the critici5ms againpt
the l'1arsaw will reveâ'l that they are aIl, more 'or less
directed'at the actual lirnit of the carrier~s liability
in the case of injuries or death to passengers or to
the pri~cipleof limitation of the carrier's liab~lity.
Circumstances have changed substantially from
1929"when the passengers had' to weigh themselves on a , "
scale before boarding the aircraft to the supersonic , , '
,age of today.' The different factors that' w~re of para­
mount consideration in wtÙghing the scàle of b'alance
between the limit of liability vis-~-vis presumption of
liability have ~ean~hile undergone substantial changes.
on'~he one hand, ai~ travel is no longer ,an inherently dangero­
us adventure of the old 1 but is now flaunted as the safe'-
,st mile for mile amon'g aIl forms of transport and the , ~ 1)
;. ~ !
i5 p~actica~lyno accident'in which a cause'cannot be
established.' On the other hand, it is no longer' fair ,to
rnake the passenger share in the risk today, when ,l,.i:ab,ilitY
, - ï ",
- - ---' - ~ ~
, ,',
, .'
'.
" ,
, ,
is a question of who is to take out the insurance.
Chapter l'of the thesis narrates the concept of ~~
the limitation of the carriers liability and ,traces hist­
oricallY the periodic incréase of the limit up to the'year ,
1950s. It analyses, illbeit briefly, the general dissati- -
sfaction with the low limits and how the courts, ~articu-
larly the United States'courts and at time in France, have
,gone round the low limits by taking advantage of the vague-
ness of certain provisions of the Conventions particularLy
Article 3 concerning docwnent of carriage, and Article 25,
1'Ïhic~ Cléals with carriage' s aggrav:ated negligence or "wilful
misconduct". It will aiso attempt to sho\i how the Governm­
ents which are parties to the Convention have attempted
until :1950s to fill up -the gaps 1eft'by the 1929 Conference
or pat'éhes 'c'aused by "'inventive judges" when construing
the somewhat, vague Warsaw corive'nt'ion provisions.
The United States rejected The Hague ProtQGol and
dec'idèd to break ranks and circumvent the- Conventiol} unila-
~erally through the 1966 inter carrier Montreal Agreement. -
This was followed 010se1y by the, Guatemala City Protocoi
w~ich extensively amended the Warsaw Convention as amended
- 5 -
by The Hague Protocol and raise the liability limit ta a
figure of u~s. $ 100,000.
Chapter II of the thesis analyses the events which
brough~ about The Guatemala City Protocol whicb substanti-
ally rewrites the rules covering transportation of
p~ssengers and baggagei adopts the concept of strict
liabilitYi introduces a provision for autornatic increase
of the limit, provision for optional suppleme~tary compen­
sation plan, a settlement inducement clause and an'
additional jurisdiction.
(1 ...
limitation, the delegatès at War~aw first had t~ agree
'.' upon a' common standar~ ot: ,vaiue ~ Ttléy di'd so in terms
that sUbseqùently becamè, ambig,uqus., T-he standard of' 1 < "
value \Vas 'gold of a stated' fineness. (r4) Th,e' liability
,limitation for cargo, 'for \ instan~e, 'was: set' at ,250 uni~s' \ ,\ \ .
o'f fine gol,d' weigh'i.pg 6?'~ <j'rams per unit ~'I The delegates " , ,
cnose an internationa1.standard of·value ..: '~ standa~d ' \ • 1 _
which \.Iould be the same in Paris ':';S ib woul~; be elsewhere
in ,the world., i
The Convention, while'using gold as a standard of
value recognized that all nations did not use it as a ,medium,
of exchange. The sum of gold set forth in the Convention was
to be Converted into national currencies in round figures. /
At that time ,there was only.'one priee of gold' and that 'was
the official priee. A free market priee was not eontemplated.
The drafters of Convention never visualized its possibility.
What was not visualized became a reality in late 19605 when
gold acquired a dual meaning~the free market value sometirnes
heing m~ny tirnes more than the official value, and problems \ 1
'of uniform interpretation of Article 22 of the Warsaw started, , '
further eroding the uniformity and the universality of the
Warsaw Convention.
developments which' brought the downfall of the Poincare o
Gold franc as a unit of account' and ~he ~mergence of the '
Special Drawing Rights of'the International Monetary Fund
as its substitute. The latter unit of account was introduced
into the Warsaw System by the Four Montreal Protocols of 1975.
At Montreal, in September 1975, a Conference was
eonvened ,to deal with cargo documentation and liability __
7 -
item of discontinuing the use ',of the Poinoare Gold franc
and replacing it with the SDR was introduced to the agenda,
the substance of which i5 ':dea"lt with in chapter III of the
the'sis. . "
Montreal Protocol No.4 amends the warsa~ conyention '1 1
'.(1929), as amen~ed by The Hague I?:r:otocol (1955J\ in respect '
of carriage of postal items and of cargo. It ihtroduces new (> 1...,\
provisions. in reS)?èct, of cargo without arnending any o,f- the
provisions of the Warsaw/Hague which réferexcl~sively to
pass!=nger and, baggage •. ,In particular, i t makes it ctear, by l'
amending paragraph 2' and, ,3 of Arths.Jl 3 of the Conve.ntion, ,
that th~ Convention does not apply ta the,carriage of postal
items and that the carrier i5 liable only ta the relevant
postal admin~stration. It further ,replaces the entire' ,
Section III of the Convention on the forrnalities of' docume­
ntation 'and considerably simplify thern. The traditional air
waybill may be substituted by o~her means which would preserve
a record of the carriage to be ,performed,r thus facilitating
the use' of electronic or computerized data processing. :tt ...
- 8 '-
introduces a system,of strict liability in international
carriage of cargo and seve~al defences which once pro~ed
by the carrier rnay exonerate him from his liability.
..
The' liability linHt" remains the same as the Warsaw/
Hague one but in view of the notion of strict liability it
is made unbreakable.
scopa of amendments it effects., on the Warsaw/Hag~e provisions.
The main t'heme of this thesis 1s based on the stu,dy
of the advantage,s and disadvantage's to The United Republic
of Tanzania of Fatifying Montreal Protocol Nos.3 and 4, the
most recent and effective innovations of the time honoured
Warsaw Convention. Sorne considerable time has been spent on
analysing the historical background of the original Warsaw"
its scopa'of application, its advantages and shortcomings
and hence its evolutionary path from its inception until 19~5
when the protocols in question were opened for signature.
•
- 9 -
This the~is dwells on that aspect of the Warsaw because it
i8, and it will remain, the backbone of the .liability system
on international air transportation of passengers, baggage
and.cargo for a long time to come. No amending protocol can
be considered in isolation from the ~varsaw Convention and
, in fact, all, without ari exception amend the original \varsaw,
or the original Warsaw as amended etc.etc~ None of those ~
protocols have replaced the Warsaw Conventibn or attempted to
do sa.
,This thesis does not analyse all the provisions of the
Warsaw Convention and,its "sub-systems." It only highlights
those concepts which have caused problems of interpretation \
and hence necessitated diversified application of the once
uniform regime', of responsibility of the international air
ca'rrier, accentuated to a larger extent 1 by judicial erosion o
by judges and unconsciously by the !ntarplay, by member
governments who through their diplomatie'efforts systematically
kill it by revising it often but refusing to ratify it and
bring it into fo~ce. (5)
3
1 . The 'Narsaw convention, as it stands today is hardly
able to fully meet pres~nt day expectations and requirements
of its members. Effort$ were made te consolidate the existing
"gal~y of unified laws lt which together constitute what has
grown to be known as the "Warsaw System", but those efforts
proved futi lé,. '
The final chapter of this thesis demonstrates that
the Warsaw' System' can still be effective taday as. it was
fifty years ago if member states take the initiative, at
least for the sake of uniformi ty and universality, to t'atify
Montreal Protoèols Nos. 3 and 4. The study is made for '.
Tanzania whose membership to Warsaw is ~xplained in detail.
Tanzan ia t al though not a party t.a the Hague Protocol of
1955, has been an active participant in aIl the riplùmatic
Conferences held sincè early 19705 to modify the vlars~n .. ' System,
but like other participants, has 'hesitated to ratify the
Protocols of 1975.
of e'qual. value ta other states that derive salace' from
internationalism and uniformity of J..iability rules relating
~-
--~-------"---"- --
\
- 11 -
misplaced if by way of caution -çhis thesis reflects in its
conclusion that no matter how many countries ratify the
mordenizing protocols, its success will be assessed by
whether If States most important in international carriage
by air of passengers, baggage and cargo" are also among those
who have ratified them.
"FOR THE MIGHTY 1 (even) TOGIVE HAY r5 GRACE." - Aeschylus
(Ancient Greek dramatist.)
FOOTNOTE TO INTRODUCTION
Lowenfeld and Mendelsohn, "The United States and the vlarsaw Convention;' 80 Harvard Law Review, 497, p.499(1967)
2. Bin Cheng l "Fifty Years of the 'Warsaw Convention:' tfuere Do We Go from Here? Prolegomena to an Integrated System of Aviation Liabilityn Zeitschrift fur Luft­ und We1t - raumrecht. Vol. 28 t 1979 p.373 at p.374.
3. Ibid. 'F'ër ci tation see infra Note 23 in Chapter 1 and note 36 -in Chapter III.
4. Article 22 (4) of the Warsaw Convention.
•
.,
Man, ,motivated by his curiosity and tireless efforts
to chase adventure and his natural lure to unrave1 the
hidden secret of llature that lay buried in the realms' of
the unkn6wn, invented ~he aerop1anes at l;Qughly the sarne'
time as the automobiles were invented. But the use of h ,
those aeroplanes as a common means of transport lagged
b!,!hind by at' least a generation or more. (1)
Th~ first sustained power driven aeroplane flight
was made in 1903 by the Wright brothers near Kitty Hawk in
North Carolina. The following decade was characterised by
more fraquent flights from different countries across their
borders to other countries. (2) Airlines emerged around the
same time'with K.L.M~ lirnited to non-stop flights of two
hundred and fifty miles while Pari American, the only inter­
national airline of the un~ted States had its international
flights confineÇl to Havana,Cuba and Key l'lest. (3)
. ,
-
, .
'\
and international travel rose to .only 400 million passenger
miles with the~fatality rate at 4S per 100 million passenger
miles. (4) The larger aircraft could carry up to 20 passengers
at a cruising speed of about 100 miles par hour for a distance
of 500 miles. The tockheed,Vegai the most advanced United
States aireraft which carried 6 pa!:>~t:dgers and a pilot had
a cruising speed of about l~O miles per hour and a slightly
larger range of about 550 miles. (5 )
"What the engineers are <101ng for machines f we must do
for- the law" said ,the reporter for the Preparatory Corrunittee
when addre'ssing the Warsaw Diplomatie Conference on introdu­
cing the draft Convention. (6) So, the need te regulate the
infant industry was felt. France initiated the move to regu­
Late air transport and through her initiative, the first
International Conference on Private Air Law was hel~ at the
Ministry of Foreign Affairs in Paris from october 27th to
November 6th 1925. The Conference was attended by at least
fort y-four delegat~s and observers from Hungary, Japan and the
United States. (7)
Convention on the liabilities of the International Air carrier and
forroed a Committee of Experts, christined "Co~ité International
Technique dl Èxperts Jurid'iques Aériens Il (CI'l'EJA). It was charged
with th~· task of comp1etin9 the work of the Conference.which it
did and submitted the revised draft of the Convention to the French
Government with a v;Ï.ew to call for the second Conference .•
The Foliah Government invited delegates to the Second
Diplomatie Conference on private ~nternational Air Law at Warsaw
in October,' 1929 • Thirty two accredited delegates and. one observer
(the U.S.) attended the Conference. (8) The Conference.adopted the
work of CITEJA, aDd brought the Warsaw Convention(9} into-existance.
The main objectives bf the. Conference were two. First,
it was to establish a certain degre'e of uniformit:-y since aviatfon
waG certainly going to l'ink Jllany countries with different customs,
languages and legal systems. The Conference achieved this almost
cornp le te ly J The second objective was pro~ective in nature. At
the time of the Conference, air transport was at its infancy.
, -
dangerous. The carrier was therefore assured sorne solid
guaran~ee and adequat~ protection by way of limiting his
"potential liability in case of an accident.
on October 12, 1929 the Warsaw Convention and its
Additiona1 Protocol were opened for signature at Ivarsaw. On
February 13, 1933,nin~ty days' after the deposit of the fifth
instrument of ratification,the Warsaw Convention came into
force among its first ratifying members. (10) These were Spain,
Brazil, Yugosiavia, Rumania, Po1and, France and Latvia~ (Il)
Other countries fo11owed rapidly with their ratification. The
united States ratified on July 31, 1934 and the Convention
became effective as to that country on October 29, 1934. (12)
Todate 1 the Warsaw Convention ls "by far the most
widely adopted treaty concerning private International law and
after the United Nation' s Charter, one of the most widely
adopted of all treaties If. (13) •
The Provis ions or the \'1arsaw Convention.
The Warsaw convention is divided into five chapters.
'The first chapter deals with scope and definitions, while the
___________ -~--~---,v=~~----~i--------~ .. ~S~.~, .... ~~ ......... ,$Z .. I~~ .. ~ J_,' , '-
,". . ~ , '
, <
second and' third ehapters, correctly 'c~lled !'the heart of th-e ... " ,
agreement Il (14) "deal wi th trànsportà:tion' 'docum~nts and' int~rna-' .' .
tional air carri~r t s' l'iàbil,i ty, resp~ètiY~lY',._ Cb:~pter IV covers ~ ,\ , " , '
}?rovis.t,ons relating to combined' ttàn'5:p~J;ta~ti.on and Chapter V ,. " '
-,'
"
The' Warsaw Convel'!-tion -app'ly b:z: it~5' terin' te .,a'll internati­
onal tr'anspo.rtatibn perf-o!ffied by aireraft for hire '(Article 1 (1) .. \ , ~ \
and internationa;L b:'f,l.nsportation bas- been deI;ined.- as tra~sporta-
tion between twb ocontractïng stat:es, oi where the 'ori~,in and des-' , l ' 1,
tination are in the same contrpcting states, transportation with
an agreed stopping place outsidetha~ state (Artièle'l (2). The , . dete'rmining factors! as te> t;he applica~Üity of the Convention are
based on the ticket. rf there ~re sèveral legs on the journey but
only one 'ticket is xssuèd the .determination depends 5c1e1y on the
first point of depart~re and the last place of scheduled arrivaI.
The particular 1e9 ot' the jeurney on', which an accident occurs is
not relevant to a determination of whether the Convention applies.'
Applicability of the ,Convention depends a'laD, solely' on the, ticket
so that'it matt'ers not' what the passe'nger's residence or nationality
is. Neither does i t become an issue once a t.icket has been issued
which ~irl'ine' performed th,e çarriage ev en if that airline belongs
to a,country which is not party te the Convention. (15)
_ J 18 '- ,
,- ,: '- 'Special ~W~s of~- ca~riage e~cluded hi" ,the Narsaw convention. l ' -
':Artlcle 2 Ù), mâ,kes the C'onvention applicable to
carriage 'perf6rmed' by 'the State ,or by Xegally const~tu,~èd
publio bodies provided 'it falls within the conditions laid 1 , ,l l ,
, , . 'do~n in -Artic,le 1. The' only 'exceptioI:1 i5 pro-lt-ided by' Article
2 (ii) which exc1udes s:arriage' performèd :u~d~r theterms of"
any -international' postal Convention. (16) However 1 this t;;rticle' ~ '" - -
'was amended by 'Article II' of, the Hague ;Proto,col but was -, , '
further amendéd by Article II of the Proto,col rro ,4, of ,Montreal, ~ , , .
1975' which- ,de1eted oit and replaced it by a text provi.ding that(
in the carriage of postal items, the carrier shall be liable ~
only to the relevant postal administfations in accordance with
the rules applicable to the relationship between the carriers
and the pos~al administration. In any-other resp~ctJ the
provisions of the Conventiçn are n9t applicable to the carriage
of postal items'.
Article 34 of the Convention also excludes international
carriage by air performed by way of experimental trial with a
view to the establishment of a regular 1ine o~ air navigation. (17)
But Article XVI of the Hague Protocol and Article XII of the
Montreal Protocol No 4, 1915 deleted Article 34 of the Warsaw
/ -- --~~---
. ('
, '
are not'appl~Cable to cases of carriage performed in extra
ordinary circumstances outside the normal scope of an air
carrfer's business.
Also excluded .from the 'scope of ap~licatiop of Warsaw
Convention are carriages performed'qirectly by State for ,
certain Contracting States, if -those states had made their
reservation pursuant to the Additional Protocol ,of Warsaw
Convention. This was aiso amènded by The Hague Protoc01.
Excluded by way of inference are stowaways,and the
members of crew when the latter are on ~he journey as part 1
of performance of their ob~igation under - -J
service with the employer (tqe carrier).
the l contract of ! ' , ~s such $towaways , .
or crew members, they are not under the contract of carriage,
thus excluded from the scope of' the Warsaw convention.' (18)
Transport Documents •
carriage and these had.been in use since 1931, even before
the Warsaw,Convention, their legal effect was questionable. (19) , ,
It was the Warsaw Convent1on which successfully made,un~fbrm
tra~sportation documents and as far
o as that score s concerned one may not be accuséd qf g~nera-
lü:ing if one that thqt objective was achieved alrnost
completely; ,T ege documents are passenger ticket, ~ggage
check, and air waYbiil.(20) The Convention imposes strict {' - ~ ~ , -
fo~al requi~ements with regard to the issuance ~f the docu-
ments of .carriage and the carrier may not be entitled to the
~Convention's limit of liability if it does not comply with
those formalities when issuing the document of transportation.
The Passenger Ticket
It i6 provided by· Article' 3 (I) that, for the carriage
of passengers the carrier must deliver a passenger tïcket which
con tains.: .- the place and da te of issue;
the place of departur.e· and of destination 1
-: the agreed stopping places, provided that the carrier
may rese~ve th~ right to alter the stopping places
in case of necessity, and that if it exercises that
right, the alteration shall not have the effect of ,
depriving.the carriage of its international character,
- the name and address of the carrier or,carriers
- a statement that the carriage is subject ta the
rules relating to liability established by the
Convention. . ,
Article 3 (2) fur~her provides that the absence, irregularity
or 10ss of the pas~eng~r ticket does not aff~ct the existence
or the validity of the corttract of carriage which is non-the­
less subject t6 the rules of the Convention. Nevertheless, if
the carrier accepts a passenger without a passenger ticket
,having been delivered, he is not entitled to av~il himsèlf
of those provisions of the C~nvention which exclude, or limit his
liability. " L
The sanction will only be~e~e~~~sed against the carrier
if there was a non-deli~ery of the ticket and not if a ticket was
issued but there was a failure to comply with the requireme~ts ~ 0' Arti~le; 3 (1) " 21,
This i5 not the case with both,the baggage check and
the waybill. (Ar~icles 4(4) and 9). In these two casés it is
categorically stated that not only the baggage check and waybill,
be delivered, but they must contain partlculars set out in
Article 4 (3) (d) f (f), and (h) and Article 8 (a) to (i)
res"pectively.'
This was the law during the 19405 and cases decided
during that time fo1lowed th ' t' (22) at ~nte~reta ~on. But
suddenly, circumstances changed and dissatisfaction with the
low limit arose. Consequently th~ saroe courts ,gave different
-
. ) /
severe criticisms Qf,the Conventions's,1~it of liability
and Article 3 was used e:x:tensively to erode the uniformity
or the Convention. 123}'
•
carrier-must issue a baggagé check which shall b~ in duplicate,
one for the passenger and the other for the carrier. (Article
4 (1) and (2) ). Article 4 (3) provides for particulars that
must be specified on the baggage check ,but Article 4 (4) provides
that only omissio~of t~ose mentioned,at(d) (f) and (h) wilr
deprive the carrier of the provisions which exclude or limit "
his liability'and that the absence, ~rregularity or los$ ',of • 1
the baggàge check shall not âffect the'existence or the validity
of the éontract of transportation which shall nonetheless be
subject ~o the rules of the Convention.
The Air Waybill.
Article 5 (i) provides that every carrier of goods has
the right to require the consignor to make out and hand over
to him a document called an "Air wayl;>ill '! and likewise the
consignor has the right to require the carrier to a~cept it •.
.e
T ... · >
- 23 -
" But Article 6 (5) saY$ that if at the request of the consignor t'
the carrier makes out the air waybill , he shall be deemed, sub-
ject to proof to the contrary, to have dOhe 50 on behalf of ehe
consignor. The air waybill i5 a prima facie evidence of the
conclusion of the contract, of the receipt of goods and the co­
ndition of carriage. (ArticJ.:e 11 (l-}.
The consignor i5 rendered, by Article 10 of the Warsaw
Convention,' responsible for the correctness of :the particulars
and statements rela-ting to the goads which he l.nserted in the . ,
~ir waybill, and will b~ liable for all damages $uffered by the . /'
carrier or any. other~ person by reason of the irregularity, inéo-
rrectness or incompleteness of the said patticularsor statements.
Article 6 (l) of the Warsaw Convention provides that the air way­
bill must be made o~' by the consignor' in three purts ~ and be ...
han!=1ed over with the goods.
Whil.e Article a- p.rovides that certain particulars listed'
in Article g (a) to. (i) inclusive and (g) must be mentioned in the "
air waybill and omission of ?ny of them will,according to Ar~icle
9,bar the carrier from limitin9his liability under the Convention,
Article 5 (2) provides that ,the absence, irregularity or loss of
the air waybill doas not affect the existance or the validity'of
the contract of car~iage which ~hall, subject ta Article 9 7 b~ r
'nonetheless govèrned by the' rules of '~he Cenvention.
(1
Article 13 of the Warsaw Convention provi~es that on
arrival of the good~ ,at the place of destination, the consi- 10
gnee is entitled to ~equire the carrier ~o hand over the air
waYbill and deliver the geods te him on'payment by him of
the charge due, and on complying with the conditions of carri-
age set out in the air waybill.
."" Article 9 provides that tl}e carrier is not ent'itled ta
'"' , avail himself of the provisions of the' Convention which exclude '~.~ ...
or limit his liability, if he accepts goods withqut àn air way- -
bill having been made out; or if the air waybill does not' , .'
"~,~ontain aIl the particulars set out in paragrap~ (a) to (i ),~ "
" .. -:Lnc,lus;i.ve and paragraph (q) of Article 8. ~'! ,'1, ,...,. 1 1.. , ..
, , ,1 , ~- ~
~ .. ......... ~ , ..
" ,
OOC~, .aga~tl decisions have' been diverse on ~interp~eting • • ~ ~ ... '1 """ : "." •• ...
p~fagraph (9) o'f Ar~iC1~~.~.ê~ ~hile sorne courts have given it a .
l~beX"al inteypre'ta ti'on,,.(204}. "others have given a very strict: _ Q " ... u " ~'" ~ .. •
. in~e~r~tation. This ~s thé :fact' that ~he paragraph requires ~ - , - 1
, a !i'tatéI.1l~nt on -the' air w~ybill ta b~ expressed' i~ clear ,language 1
and th-at if .. there îs any doubt'·<:>r ainbiguity, the éarrier will ~ ~ -
..... ~ los~ the benef:it of the limitation of liability established by , , .... ~ '~
the CQnvention~ " \ ... * ''''
- 25 -
As a result a staternent like the following on the back
of the air waybill:
"these general, conditions are based upon the Conve­ ntion of; Warsaw' of October 12, 1929, in 50 far as concerns international carriage within the special meaning of the said Convention"
was held not to satisfy the requirement of Article 8 (q) and
therefore the carrier lost the Convention's prote~tion'of limit Q
-.., of 1iability. (25)
The liability regime of the Warsaw c~nvet:Ltion is covered
by its Chapter III. It establishes the rules that carriers are
liab1e for dan'lage in case of accident: sustained by a passenger in
the course of a f1ight or whi1e ernbarki,p.g or disembarking (Article
17), C?r for di:!struction or 10,ss of, or damage to b~ggage or gaods
;- (Article 18), or for damage occasioned by delay (Article 19).
These liabilities are lirnited to the maximum arnount of 125.000
,,- ;rancs (approxirnately us $8,300) 'per passenger injùred or ki11ed
(Article 22 (1) i 250 francs (apprqxirnately US $17) per ki10gram r
If' ,
for checked baggage and cargo {Article 2,2 (2); and 5, do 0 francs
" (approximately US $ 332) per passenger for objects which the
, .' . h'" pass~~ger ,takes charge of himsèlf (Article 22 (3). These surns
rerer ta' the Poincaré Gold franc which according ta Article 22 (4)
consist of 65~ milligrams of gold at the standard of fineness of
nine hundred thousandth.
- 26 -
This limit was low ~ven in 1929 but the underlying conside-
ration was to safeguard the airlines 50 that tl1eir' capital would
not be scared away by fears of a sing,le catastrophic accident. (26)
Altho~gh it would seem that the carrier receives more bene-
fit from the Convention, the passenger was not entirely neglected.
The Convention JMkeS void any provision that would tend ta relieve
the carrier from the liability beyond that fixed by the Convention
(Article 23) and places the principle of liability on the basis of
preswnption of fault" shifting the burden of proof 50 that the carr­
ier is presumed'liable unless it could show that it had taken all
necessary rneasures to avoid'damages or that it was impossible to
avoid, damages or that it wa5 impossible for it to take such measures.
(Article 20). Therefore, the essential ba~gain was a shift in the
burden of proof in return for a limit of liability except in cases
of wilful misconduct, (Article 2'5) which if proved by the party
assurning it, has the effect of denying the carrier the low limits
ot the Convention.
The ,carrier may aiso avoid or reduce his Iiabili~y by , ,
proving fault of the injured party, and the causal connection
between this fact and the damage sustaine'd (Article 21).
-
The carrier will also forfeit entitlernent to the low
limits' of liability provideâ by the Convention if it does not
satisfy the mandatory requirements concerning the ticket, ba-
ggage check, and the '\'mybill as provided for under Artic~e 3
(2), 4 (4), and 9.
This Chapter of the Convention, just as the previous
one, has ngf been entirely successful in ov~rcomi~g the dive7
rgent -nat~al legal backgrounds of its parties. Certain of
its provisions are still subject -to contradictory deèisions
and interpretation by différent courts of the various contra-
cting states.
fundamental. appr~ch to interpreting the Convention. (27)
Their competence have been di-rectly derived from Articles
22, 25, 28 and 29 or assumed _indirectly from the incomplete
manner in which other Articles of the Convention have been
drafted. (28)
"
Article 17 of the Warsaw Convention provides:
"The carrier shall be liable for damage sustained in the event of the" death or wounding of a passenger or any other bo­ dily injury suffered by the passenger, if the accident which caused the dama­
•
concerning the meaning of werds used in that Article. Those
words are "accident" "any operation of ernbarking or disernbar­
king" "bodily in jury " and' whether it covers "mental anguish."
The Warsaw Convention does not define terms. Perusal
of the legislative history of the Warsaw Convention reveal
that an earlier draft of ,the convention provided parallel
liability for bath passengers and goods "from the moment
when travellers, goods or baggage enter the aerodrome of
departure to the moment when they leave the aerodrome of
destination."~29)
was proposed that liability be limited to the period when
pdssengers were physically aboalid the aircraft.' (29a) Other
delegates expressed concern that this would exclude liability
during the embarkation and disembarkation. Others c~iticised
the draft proposaI saying that it irnposed liability upon the
carrier for accidents within the terminal while the passenger
'was not within the carrier's control. (29b) It was the French
delegate who suggested that in view of themnumerable factual
situations which might arise, attempt should not be made to
define precisely the carrier's liability.(29C) The delegates
voted against the French proposaI but no alternative or sub­
stitute provision was ~ovided. Article 17 was submitted for
drafting and was adopted without further debate in its present
forme (29d)
So neither the words of Article 17'1 nor the ~egis-
1 lative history of Warsaw Convention offer any concrete
help in determining the scope of the operations of embar­
king and disembarklng. Article 17 gives 'no precision as
to tim~ or space that would help circumscribe the operations
- 30 -
of embarking or diserobarking. Courts in the United States
and France have affirmed the principle that the applicabi­
lit Y of the Convention is not limited to boarding, or ali­
ghting from the aircraft. (2ge) The solution is not simple
for acci.dents occurting within an airport as will 'be demons-
trated here.
The U.S. courts have adopted two approa~hes. First,
the location of the victim at the time of the accident which
caused the "damage. In MacDonald v. Air Canada (29f} an '
elderly plaintiff fell in the baggage cell~ctioh areè of the
terminal and argued that it was during the operation of
disembarka~ion and therefore the air carrier should be liable
for damages that she sustai,ned. The Court of Appeal for the
First circuit said:
tlit would seent that the operation of ,disembarking has terminated by the time the passenger has descended_ from the plane by the use of whatever roechanical means have been supplied and has reached a safe point inside the terminal. ~ • ' ....
This was followed by several other cases dealing with
disembarking passengers who were found te have arrived safely
"
within the' airport ~uildi~g e.g., in Martinez Hernandez v.Air
'France (~9g~ and in felisrnina v. Tr'ans world Airline Inc.(29 h )
'where defendant airllne attempted te use the Warsaw Convention "
defensively by contending its two year limitation period to
bar a claim,for injuriés which occurred within the terminal.
The court held that the Warsaw Convention did'not apply beca­
use the p,laintiff hac'!- finished disembarking when she' fell on
, a terminaL escalator.
.number of courts to embarking' passengers for wnom an entit'ely
'.different test has been devised. Even 'cases involving disemba- "
'rking p~s~engers are now influenced by this second test. (29 i )
The secqnd approach was developed in the c~ses of Day'v. T.W.A. (30)
and 'Evangelinos v. tt.N.A. (30 a
) which rejected the 'location
test in the case of èmbarking passengers. Both cases dealt with
the sarne terrorlst attack perpetrated in the travel lounge of a 1 • ~ ..
Greek ~irport while paSsen9ll'S ':were linïng up for a hand baggage
check and a phy~ical"sœrèh co~d~cte-d- by the Greek police prior . '-
to boarding. Instead:of ask±ng whether the passengers were in ~l , )
a safe place w:lthin the airp'ort,' the' two_ courts emI;hasiZed factors , , ,
~uch as the natu,re of, the ,vic'tifl\s' 'activities when injured, and
th~ 'extent to 'which :the ai-rl,ine was. ~~e~~Jsing pontrol over the
passengers at the ~ime', on tpe accident. The -nèw test was formu~
lated as follows in E"an~eli~os:
- 32 -
-II In our view # three factors are primarily relevant to a de termina tion of the quest­ ion of liability under Article 17; 10cat-
$ ion of the accident, the activity in which the injured per$on was engaged, and the control by defendant of such person at the location and during the activity taking place at the time of the accident alleged to be Il in the course of any of the opera­ tions of embar~ing. II
This tripartite, test was satisfied. At the time of the
attack, the plaintiffs were engaged in compl~ting the last act­
ivitiés required as a prerequisite before boardin~. The carrier
'had announced the flight and directed the passengers to stand
as a group near t~e departure gate. In 50 doing, said the court,
the carrier had assumed control over tliegroup - and, accordingly,
it "had begun to perform its obligation as air carrier under the - -
contract of carriage and had assumed responsibility for the
plaintiff's protection." The court noted that its test was in
accordwith a German decision and that it was·not really .inco-
nsistent with the MacDonald ruling or with the French case,of
Machê c, Ai;- Fr~nce which both fa'voured the \~ tha t the,
ntion does not apply when passengers have reached Il safe"
conve-
points,
distan~ from the risks traditionally ,thought to be inherent in
air carriage. These two cases were_distinguished by the court
. on the basis that th~y dealt with disembarking passengers f who~e
situation within an airport 18 markedly different frorn that of
embarking passengers. n
The Court, however, acknowledged that its ruling went
much further than the MacDonald or the Maché cases since it ~
included within' air transportation risks the danger of violence
- whether in the forro of terrorisrn, hijacking or, sabotage which
i5 today 50 closely associated with a~'transportation.
Chief Judge Seitz passed a strong dissenting opinion in
Evangelinos. The.dissenting opinion is worth rnentioning. He
started by saying that the policy underlying the enactment of
the Warsaw Convention was base~on unusual and ,grave risks which
were then inherent in air travel: The text" they had drafted
was still in force in its original forme He said the Montreal <.}
Agreement had not touched Article 17, and the treaty's original
policyof 1I1imiting an airlinets"liability for personal injuries
caused by the unique perils of air navigation' retained its .."
.vitality. On that basis he thought that ~he location tes~ was "
best suited to fulfill that purpose smnce location has a signi­
ficant impact on the risks to which a passenger is exposed. He
fa und that,' in the particular case r the plaintiffs were not' in-
jured at a locationwhere the perils of air travel are logically
encountered; and that, even if they had been, he argued that
they could not have been covered by the Convention becausa they
were not i~ the course of the operation of embarkin~. For him
the accidents within the airport terminal, cannot be regarded
as falling within the scope of the treaty. He supported his
- 34 -
statement by a deep analysis of the drafting history of the
provision.
was not shared by aIl the participants, especially the French
delegate: and the text was referred to a drafting commit tee
without any definite guidelines. ..
The Evangelinos case dem?nstrates hQW little reliance
can bè placed on travaux pr~paratioires ,when the y are ,as, confused
as those relating to Article 17. However, the Evangelinos case,
as weIl as the other cases which decide Which test 15 best suited
to delineate the operâtions of embarking and disembarking 1 i11-
ustrates that under the technical legal reasoning consideration
was overwhelmingly based on whether'the air carrier should be
held responsible for acts of,terrorism within airports. It is
possibly true that, in determining whether particular events
ought to be covered by Article 17, the tripartite test may
make it easier to render the carrier liable by allowing a
number of factors to be cOl)sidered, but the saroe result could
be achieved with the location test simply by saying that~the
'passengers were not at "safe" point within the airport.
instance, the court in Ma~lneà~ Hernandez applying both the loca- 1
tion test and the triparti~e test, found that the carrier could
not be held liable for the terror'is't attack involved in the
- 35-
particular caSé. 50 genera':py it is not the test applied by the
court which is the decisive factor, but whether a particular co­
urt is willing to ap}?ly in Warsaw, cases modern legal theor ies of
cc;>st éllloc~tion which indicate that the carrier should be "he1d
liable on the basia that airlines - are ~n the best position te
d~stribute among all passengers the burden of 5uch incident~.(30b)
Attempts. were made at the Guatemala city in 1971 to
explain the terms in Articl.e 17 of "embarkation ànd disembarkation"
which to sorne delegates- seerned to ,cause problents in interprating.
It suffices to say that this attempt w~s not pursued 'because the
majority of the delegates were of the opinion that the terms do
not cause any problern to warrant any changes. 50 the terms are
today still intact in the Warsaw system just as they '.'lere in 1929
when the Convention was concei ved.
BOdily in jury: whether it encompasses mental anguish.
Aerial hijacking cases ~n the ear1y seventies caused
many: litigations and a great deal of uncer:tainty emerged in
interpreting "bodily injury Il in Article 17, that is, whether
the term "bodily in jury il encompass IImental shock" associated
,with hijacking cases. The question has been whether psychic
injury is a IIbodily in jury Il • The legisl:ative history of Warsaw
•
Courts have reached surprising conclusions on the issue.
In the case of Herman v. Trans world airlines(32) the N.ew York
State' Supreme Court ,acknowledged that under the Warsaw Convention,
as modified by the Montreal Agreement the detendant airline is
absolutely liable for both physical and e~otiona1 injuries sus­
tained by a passenger during international air transportatioh~
In this case, on,September' 6,1970 a ~.W.A.flight 741
on which ~he plaintiff was a passenger, was hijacked by Pa'le~ ,
stinian gœ rillas and forcèd to land at a desert location out-
side Amman, Jordan, where it remained j~obile until 12 September, ,
with the plaintiff and other passengers being held as captives
and hostages. The plaintiff sought damages for "personal 'in jury "
contending that because of her captivity, she experienced ext­
rerne fright, sustained appreciable weight loss, and developed a
severe ~kin rash.
The de fendant airline contended"that it wou~d have been .,<,
liable 'under,the Montreal Agreement modification had one of the
hijackers physically injured tne plaintiff, and contested the )
~position of strict li~ility for purely emotional in jury.
The defendant further contended that the alleged acts'did not .,
occur in the course of international air transportation because
liability does not extend to a hijacked - grounded airplane. ~
'.
.. $
The Court ruled that T.W.A., was in accordance with the
Montreal Agreement, absolutely liable. The proof of damages
for injuries sust~ined during the intenti~na1 wrong committed
by the hijackers was enough and accord~ngly the plai~tiff had
proved cornpliance with Article 17 of the Warsaw Convention.
The Court based its èonstruction of Article 17 of the Convention 1
on the literaI French translation. It reasoned that the int~r-
pretatiqn of "bodily injury" describes hurt or in jury, in add­
ition tO'wound, and that the p1aintiff·s.~motional damages are
incorporated in that interpretation. (33) . ":"
The case of Rdsman v. Tràns Norld Airlines (34) arose
out of the same hi~acking. Roman 'and Herman were consolidated
for appeal, and identica1 decisions were made. For these cases,
it is :important to note that it was said that "mental in jury"
alone with no observable tfbodi,ly in jury " does not fall under
the scope of Article 17. But this concept was changed in the
case of Husserl v. Swiss Air Transport Company (35) • In the
case of Hussel, the federal district court of New York allowed
recovery for mental anguish.
.r- The court~ in arriving at its aecision 'said that types
of injuries not mentioned in Article 17, 18 and 19 should be '
. ,
,.
" "
3,a -
apply if t-h;ere were no treilty. 'The fact that the ,Con'.l~ntion,
does not provide' an answer was construed to cre<;l~e"'a' legal , t
vacuum which the ~ourt felt must be filled most apwrppriately
by including as many types of injuries as possible. Thè~efore, " "
,Husserl' s case i5 d~stinguished from Herman and Rosman cases
in that in ausser,l, mental anguish ::;tanding alone is recoverâble,. ,
but in the forme~ mentioned cases t1mental in jury" alon~, ,with' , .
no observable "bodily.injury,r is not, recoverable. (36) This case
and Palagonia's Case represen,t the current law iri the United states
today.
Compensable DamaCJes
The Convèntion dge5 nat specify who may bring su~t in
respect of death or in jury or the type ,of damages recoverab.)..e.
It simply specifies t,he type of damage, that ia harm that
triggers a ,claim. Judg~s have emphasized. that silenc'e
of the Convention on the,issue means that the word ,
"damage" in Article 17 has ta be i~terpreted acc9rding to ,the
law of the çourt seüed of the case. Therefore 1 COUIrts have
simply applied the leK fori Îor compensable da~ages. There' ~ "
is' a considerable difference ()f attitude in the different courts
\ \' ,
Wêre un~nown to ;:;ùme lex fori. For instance, no, French ,case deals .'
~ith the issue of determining what types of losses may be compen-'
sated because there 15 no such issue for a French court. In cr
'l
... 39 -
Warsaw cases, as weIl as in domestic Iaw cases, aIl types of
~oss can be fuIIy cornpensated, p'rovi~e~ that the y ~re certain
and direct.
( A 'considerable difference exists between the French Law
and the Common Law rules where ~here is no restriction on the
type or the extent of damages which can be recovered in cases
of wrongful death. As a result in the English case of Preston
v. Hunting Air Transport, (37) the court relied on thE! wording of
Article 17 ta reject th~ de fendant 's claim that only financial
1055 cauld be cornpensated. Article 17, said the court, "does , ,,,,
not refer particularly ta financial 1055; it refers, to damage.,
Accordingly f the c,ourt awarded a SUIn for the lOBS that the in­
'fant plaintiffs had '~ustained Qy reason of the death of their
mother, which had deprived thern of her cate ,at an age when they
needed it m'Qst.
In another case, a Canadian c~sé a ,different decision.
was reache4 because of reliance' on Iex fori:. ' In the case of
SUEPrenant v. Air Canada, (3a) the daught~,r, of the plaintif:Ês
was ki1led in an air crash. The par~n'ts c,~aimed heavy d'amages
for solatiurn doloris i.e the psyëlii:c trauma and other painful , "
(,..r ,
feelings created by the death of the!.t' daught~r. It 'was held
that the silenoe of the Convention'on.the 'issue necêssitated t; - • ' ~ ,
'reference t:o the law of the court seized of the case,"for inte-
rpretation, and 'according to the le;x. fo;Ù it \-tas found that
that claim was founded on lasses ,subjective in nature and
imrneasurable in economic terrns by any ~orite;ria recogn,ized by
,that law.
- 40
This adds on to the list of instanées where the Warsaw
Convention has baused disuniformity. These 'cases demonstrate
a considerable difference of- attitudé, understandably 50, but
necessitated by the Convention.
It is worth noting that, the most recerit changes effe­
cted to the Warsaw Convention did not deal with this matter.
Liability for bag~age and Cargu.
The word "occurrence" is used in Article 1.8 (l). as
against the word "accident Il in Article 17 (1). This means
that the provisions of Article 18 (1) impos~s a more severe
1iability-on the carri~ge for baggage and cargo.Articl~18
(2) provides that transportation by air during which the o'f-curr-
. ence wh~Ch
}"
(a) the ba9'gage or cargo should be in charge of
carrier, and
(b) should be in an airport or on- board an a ircraf t,
or in the case of 1ànding outs-ide an airport,
in any place whatsoever.
Article 18 (3) further provides that unless the carrier can,
prove to the contrary 1 damagé caused in the case of surface
transport~tion incidental to air transportation will be presumed
-
Convention as a source o'f damage. The notion of delay ,
;mplies "a discrepancy between the time when one party is
entitled to expect the performance of the carrierls duties
and,the time when th~se ~uties are actual1y performed. (39a) , ,-
Most air -carriers have sought to rendeF the realization of , /
de1ay' impossible through their contractual clauses applica-
ble ta the carriage of passengers and the carFiage of
goods. (39b) It is stated that 'carriers are not bo~nd by
any indication of tinie that they have given for the comple ....
tion of the carriage, or, Qther words ta that effeCt. The
abject .o~ suc!'l_ clauses i8 to deny ta the passengerlsh'ipper , -
th~)::ight to expect the performance of the carriage at a
particular time. Since there i5 nothing with which the
a:tu~~ time of performance can be comp'ared,no delay can
easily be pinned down on the carrier.
These conditions are normally carerul1y warèed'for
· _.
declares null and void 'any provision which tend ta relieve
the carrier of ~iability or to fix a lower limit than that
which is laid in the Convention. Neither can the cond'itions , 0 •
provide that there won~ . be liability for delay because they
will likewise be rendered null and void by Article 19 as
they will be clearly relieving the carrier of the liability
imposed by 'that Article; The conditions th~xefore, properly
assessed, deprive the Article of its real meaning. The
liability for deray ls respected but- its exi,~tence i5 made
unattainable.(39C )
7'ns, the. carrier remain6bound to delivet\ the goods quick1y
since shippers resort to carriage by air ~nlY because it
al10ws quick del~very. As a result, in the case of Souillac , .
c Air France (39d) a passengèr was on a flight due ta arrive
at Fort-de-France after a stop at Pointe-à Pitre had his
journey postponed on arrivaI at Point-à-Pitre unti1 the
following ~orning without any explanation from Air France.
The plaintiff sued the company for the da~age he 'had suffered , .
)
/ , -
-timetable, whereby the court ruled that, by virtue of
Article 23,
••• ft if i t 16 admissible by reason of the risks specifie to that mode of transpor­ tation that an air carrier can exonepate himself in advance of. its liability for a minor delay, one cannot recognize any validity to a general clause of the_ cont­ ract of carriage tending to exonerate the carrier fro'm the consequences of an impor,,:, tant delay. and a fortiori of a flight cancellation or postponment."
A similar resoning haq been adopted in Robert Houdin c.
St~ La panair do Brasil. (3ge)
50, Many cases emphasize the fact that the raison
d'être of air transport is its rapidity. Air carriers
,can~ot be allowed to escape liability when they fail to
perform the carriage rapidly because this ~'ould eliminate
their essential contractual duty.
~f th~ conditions of carriage dealing with delay i5 ta
exoher~te the carrier for case of slight delay. This
result cannat even be achieved-if gross neg+igence was
- 44 -
found"against the carrier in the form of dol or faute Lourde.
otherwise in aIL cases where the delay is more than slight,
the exonerating provisions of the cènditions of carriage are
of no use. (40)
The only defence provided by the Conventiqn that,the
,carrier can rely upon i5 to prove that he has takèn ail nece-
5sary measUres to, avoid the 'clelay, or that it was impossible
for h±m t6 take such measures, pursuant ta Article 20 (1).
The conditions of 'carriage cannot alter 'that facto
In common'law jurisdictions a notable caae on this
subjoct is that of ,Bart v British West Indian Airways ~td. (40a:)
decided by the Guyana Court of App~al. The plaintiff ,had
selected a .winning,combi~ation worth more than pound 20,000 . ,
in a football pool organized b:( an English firm., By a
series of delays, the package did'not leave Guyana a~ sche­
guled and when it altimately arrived in London it was too
1ate to be considered. The plaintiff claimed damages against.
"
- 45
the air carrier, who argued inter alia that under the cont-
ractual terms there wag no 'legally binding dut Y on his part
ta deliver the package on a particular date. The court­
rejected that argument saying:
"This does not mean and cam10t mean tha t delivery will he permitted to take place hO\.Jever' it pleases the carrier, It will 'therr~become necessary to imply that the carrier, must perform the carriage within a reasonable time having regard tb all the circumstances of the particular- case.," .
This casé, although not- an international carriage case within
the meaning ~f Article l ,(2) of fh~ Convention is used to
illustrate this point' because most of th~ provisions of the
l,egislation for interna'tional carriage by air~ including'
Article 19, were extended to non-international carria'ge by
Orders-in-Council.
reasonable delay, as in Common Law case of Bart, and ---....,....
hy allowing a carrier to avoid n~bility in the case, of
slight delaYI as in the French decisions arequite
similar in practice', (40b)
The Convention is ailent on the point of compensable
damage leaving it to the lex' fori ta determine the conditions , . under which damage allegedly due to delay may be compensated.
Once the existence of damage due ta delay is proved, the , ' ~
carrier ls presumed to be liable o~ the basis of Article 19,
unless he proves that he took all the necessary m~asuresto
avoid the damage, or that it was impo,s'sible to také such
measures, or that the damage was due to contributory neg ...
ligence of the' cpmplainant., In case The Hague protocol is
applicable, the carrier can aiso rely on contract~al clauses
relieving him of liability for 10S5 of damage resulting from
the inherent defect, quality ,or vice of the. cargo carried
pursuant ,to Article 23 (2) of the Warsaw Co~vention introduced
by Article XII of'The Hague Protocol.
,The provisions of Warsaw Convention do not specifica- "
l~y ~ie d~lay with the regime of limited liability as is the
case'with other damages. Also, although the regime of,
'0
., '1.,
.J
- 47 -
ta cargo, by the Montreal Protocol No.4 of 1975, to
that of strict liabi1ity, no such changè was made in
the field of carrier's l~ability in case of delay.
It was not until March 1984, when the Cour de
Cassation in ~he case of Air France C.Ma1bois- et st~
Vacances - Liberté (41a) ~u1ed for the first time
thàt the 1imits of liabi~ity apply in th~ case 9f
delay:
rsial provisions in the warsaw,system partly because o~
inherent difficulties in interpretation and apt'lication,
F •
- 48 -
and partly because it is one of the few openings through
which passengers and shippers can overcome the 1imits of
the carrier'S liabi1ity ~n Article 22 of the Warsaw Con­
vention and obtain full compensation for damag~ suffered5 42 )
Although the warsaw convention has been revised
many times, still, the unarnended Warsaw Convention re-
mains binding on Qver 110 States,' the Warsaw-Hague Co-, ,
nvention on about 90 States and, as far'as Article 25
i'5 concerned, i t remains of continu lng importance' beca-
use, although the Guatemala City Protocol of 19.11 and
Montreal Protocol No·.4 of 1975 which rnake the liroit of
the carrier's liability in the carriage of passengers/
baggage and cargo, re~p,ective1y 1 no longer breakab1e,
ar~ not yet in force and it i5 difficu1t to.predict
when they will entre lnto force. The result i5 that,
A~tiGle 25, whether in the unarnended version as in'
ot'igi~al Warsaw Convent,ion, or' as revised in the Warsaw/
Ha9ue convention, is still applicable ,to international
carr~age by.air, and will continue to apply for sorne
time to come. {42a)
Not aIl States h'ave ratified the Hague' Protocol which
came into forc~ on lst August 1963. As a resuit most states
which are bound by the Warsaw/Hague Convention are
bound by Warsaw Convention, making the nurnber of States bound
by the Warsaw Convention higher tha~ that of states bound by
the WarsawjHague convention. Warsaw Convention is therefore
still of importance and relevance.
As of its Article 25, the original CITEJA proposaI
was to deprive the carrier of the benefit of limited li
of the Convention in case of "dol", but due to diffiqult in
translating that term 'into'other languages,
"acte illicite intèntionnel" was ussd in the Warsaw draft >'4{._,.., .1'
During the Warsaw Conferenc~ in 1929, the German Delegate
suggested that a carrier who was guil ty of "faute lourde 11
shou1d aIso be denied,the benefit,of the 1imited liahility.
The British Delegate, Sir Alfred Dennis expressed' the difficulty
in translating either of the concepts rneaningfuly in terms
of English law, and said:
"We have at home the expression "wilful misconduct," which l believe covers ev~"" rything you want ta say; it covers nat only acts committed deliberately, but also .acts of carelessness committed regardless of consequèpces."(42c)
There seemed_t? be ~n agreement in substance and the
'\
;'
effect, that as worded, the amendment would have the effect
of depriving the carrier of the benefit of limited liabili­
(,y wherever 'there was '~f~te lourde" (gross negligence)"
whereas wha't one wanted to sB:Y was whene'(er damage i5 '
caused conscious1y (volontairement), (42d)
The te~t which emerged from the Conference as the
fi~st paragraph of Article 25 of the W~rsaw Convention,was
trans1ated in English in the Uï/ted Kingdom Carriage of
Air A,ct, 1932, as fo11ows: ' '\
"The carrier shail ~ot be entitled te avail himself of the provisions of this Convention which exclude or 1irnît his liability if the damage is caused by his wilful misconduct or by such defau1t on his part as, in accordance with the law of the court seised of the case, is considered
r -~.> to be equivalent to wi1fu1 misconduct."
)
~
.. ('),
reflected in Article 25 in that the carrier lopes the
benefit of lim1ted l~~bility not slrnply bec~use of his
guilt of "faute lourde" but such "faute (lourde)" as
according to the law of theht:0urt seised of the case, , .'
i8 considered to be equivalent to "dol!'.
1
Thereo has not been problern in the Common Law
jurisdiGtion in applying Article 25 of the Warsaw
Convention. The phrase IIWilful Misconduct" in, the
English courts poses no particular problem. As
was defined by Sir Alfred Dennis during the Confere-
nce lt means simply "acts committed deliberately
or acts of carelessness without any regard for the
consequences." (42e)
wilful misconduct ls the case of Horabin v.B.O.AC. (42f)
, "
, ,
- 52
o
1
The pilot had in tlÎis "'case' failed to land when he was given
'permission to do 50, and instead changed course without full
communication with the control tower. He eventu,ally attempted
,ta return from France _ta England when he was low on fuel.
: Barry i, in his direction ta jury defined wilful misconduct
';>~s follow5:
"wilful misconduct i5, misconduct to which the' w.ill is a party, and it is whally di­ fferent in kind\ from 'rnere negligence or carelessness 1 however gross that negligence or carelessness may he. TM will must be a party te the misconduct and not'merely a
, party ta the conduct of which' the complaint is made ~.. • To establish \'l'Hful misconduct;: " ',. on the part of (the) pilot, it must be sho\'l'n r not.only that he knowingly (and ,in that sense wilfully) aid the wrongful' act, but 'also that, whe,n he did it he was aware that it was a wrongful aèt, i.e. that he was aware' that,he was committing misconduct.~ •• To be -guilty of wilful misc~nduct the pe;rson conce­ rned"must 'apereciate tnat he 15, acting wrong­ full~ " or 'ls wron<ifu11y omitting to, act and yet eers~sts in' .50, aO'~n9 or omittlng to act regard­ less of the conseSl';ences,or- acts'or oroits to act with reekless l-ndifference as' te wh'at the rest.llt may be n - (émphasis added.)
, '
"
'.,
< '
<, "
<.
",
, ,
, '. - S3
. c~r~y oùt safety tests ,on the altimeter. It was said:'
"~Uilful misconduct ls the intentional . performance of an actowitn l>n0\41edge that the performance' of that· act"will probably resul t, Jn injury or it may be intentional petformance of an apt, in such a manner. as to imply reckless cf\~sregard o,f the prol;>at>le -consequences of the\~ct. Likewisè, the ' intentional omission ôf some act l with know­ ledge that such omission ,will 'probably ,
,result, in .damage, oI;' injury, or the inte~tio­ ni'll omission of sorne act in a manner from which c01,lld be imPlied reck.less disregard .of t~e probable consequence of t;.h~. omission, would' aiso be· wilful misconductG
• n
The Commofr;L.aw co:urts 11'1:i."e àpplied §\iliject;i.vEt t~st in "
"",tpese ças~s consist.ently am} in tl1~ case ,of Berner v. British- - ~ " -
Commonwealth ~a~ific-Airlin~s, Ltd542h ) the court of first • , f
instance ~pplieÇi, an objéc.tive 'tèst rather' than sUbjeètive.
But the judgement 'II/al?:ieversed on appeal. where the Court of
Appeal emphasiséd that there' must be a '~e~l.li~atiohl.of' th~
"probab il ity, of damag~ and a 'reckless disregard of tl1a~
prob ab il ity . (42i)
~he burden of proving wilful misconduct is on the"
plaintiff and it is a difficult burde~n ta discharge. It
, i5 not enough for the plaintiff to merely, show ~hat the
'.
,- , .
. ;
~ --~------~----~--------------.. ~~ .... ~~ ...... , .
- S4 -
was in breach of one or more sarety regulations. Xn American
Airlines v. Ulen, (,42j) :l..t wq.s held' that even an intentiona'l i
violation of 'such regulations w<ould not necessar:l,1y c.ons.tituee , ,
wilful misconduct unless the~e was knowledge that the violation
was likely to ~ause injury, and a wanton and reckless, qisregard
of that probability. , '
On the question of using the second brançh of Article 25, t
Le. a fault which "in accordance with the law~ of ·the ,courtseised
,of the case;,' isconsidered to be equivalent to 'wilful rnisconduct" , ' • 1
t~e Common Law courts 'are'once again uniform in ,th~t'tne quèstion t t .: .... - ... • _ .... • f' ., ." f'-.) v •
d<:)es~,not ~r~se:- simP1y because tl,le,'lex f6'rii does not"conaider', , '.',
that the~e is 'anything eqtiivaient to, w.ilful mis~onduct: rnstead.; ' .. ,- " ,. "
the çourts em~hasize th~ specifie charaeter of wilfül miseondu~tf,
,~ ~hich ,i~ entirely dif~e~en: fr~~m negli?~èr:Cè "~nd ~oes far, be'y~nd
Ù,," hO~,~ver ~ros_d- er --e'ulp~le :th~i"n~gli~en?~ ~ight ha:e been. . ,) ,
" Àpplicatio~ of Artic'le 25' in Civil'.ian jur:i,sdiet'ions. ",
If there has been an, agree~'nt. Ln, 'the corn.mo0: countriès
,on the n<;ltiDn oi" wilful irtiscond~ct r it has not been,' the, ('Jame in l , " ~
the civil' law ~~stem where diff~rent prac'tlee~ have d~veloped.
conçe1.vêc;l in the or,iginal 'proposal a'ë '"the '. '" . " .,:',.' , (43)'
in '1929, mèans an intentional unlawful act.' ,~- " , '
Warsa~ Conf~rence - 1
, '. - ,1
It' has some1!~mes been' iliëtéC.qratély tra'l,lslated ·~to En'glish as ... :.. ....... ~ ,,' _. \. ~, ~. • ~ 1
..
,.
, \ /', --" \
share the same feature that the auther of 'the, act, in both ,cases,
intends 'ta commit, the' ac,t and is aw'ar~ of the wrong'fulness ,of it, , ,
but they ditfer in that the standard of'wrongfulness in the two
concepts are not necessarily identical. In wilful misconduct, t,l?e 1
act needs on~y \ to create a ri'sk of probable damage to others,' but in
dol the act i8 'designed to cause damage ta others. While in wilful ,
misconduct the author af the act probably has né intention to
cause damage, in dol he' has to havè. (43a)
, .Majority of ,"Cases dealing with the unamended Article 25 ~ ~,' ~ ,
, <
lnaccordance' with the, law' of the .. court seized of the case, i5
c'OI'lSi:~~èq. :to 'be '~qllivalent to dei .. ' .. It l.s·'an a9cepted rule 'of law '
'in .seve,f~l qlVil., .l~w ~~uht;~~s that', faut~, lourde -' gross neg~igenCe ~ ~ . l " '. - .. ~,; , ' " • ' ..
- ,should he trea:ted a.s dol hri th~- bas~s of 'the mâxim culpa 1ata dolo It ~.. ,
, aequipaf'atur, whlch has bee,n integrated' illto thé law 'of thèse coun;;"
tries •. ' Accordin,gl.y" .' if the maxim 'is, pârt of the 'lex 'fori,' " the air
:, ~arrier wiii ràde .un~im~ted ~,iabil:;'ty il), case of faute l~~rde 'as,
well as 'in case of 'do'! proper. '(~"3b) So, whether an.d when a defa- - -'. ~ ---;""'" ~ ) , '-, '<5
ult 15 deemed equivalent to' dol i5 1eft to the~ 1ex' fari it necessi- , .,.,,' -- ' . ' . . . ~ ~
tates 'court's 'Of' di.i:f~rent countries: to ~pp'ly different stal1darqs in
i,nterpreting Artié'le 25. _ ?.. . û
S?metimes cour~s in the sarne country may , ,
·differ, For in,stance the' Court oI -Appeal 'of 'Léopoldvil,le in the
, ' , ,
default is equivalent to ~) was applicable in Belgian
Congo, butco~rts in metropolitan Belgium did not appear
to take the sarne view.
In Collet v.SABENA(43d) the Brussels CQurt of First
instance held:
•
"the very nature of dol and of gross negligence prevents them from being asstmilàted or con5i­ 'dered aS equi'lfalent one ta the other ••• dol is characterised by the intention ta cause damage whilst negligence, even if grose, by, 'the -absence of such an intention ••••• Il according ,to Belgian l'aw, grass negligence' i8 not cons idered a~ be,ing equivalent to dol," J •• ~ "There, ia a place' for interpreting the-aàage ~culpa lata dolo
< aeq1iipa'ratur" in the sense that it allows the judge to point out that, in the case before him, the defaults are so gross and ineXcula51e tha~ they'can in fact be treate4 in no other way tnan as indications of dol, with the ~ésult that they rea'lly prove there \<las dol: (this la, what ia meant by the adage) "culga-:Tata'-dolus est" (aggravated default is dol)"
on the otner, hand, in Francé, . t:he Par ia Court of,
in .the cli1~e ~f Air 'Frapc~ v. Nordi'~k Transpo~t (4 3e ) sàid: " " • 4 ..
, .'
. '
. " , '
(
..
However, in the case of Hennessy v. Air~rance ,the
Paris Court of Appeal, upholding the decision of 'the lower
court that Article 25 was not applicable said:'
Hif t'he construction given to the - " notion of faute 'lourde by the courts in France 1s harder on '
'the carrier' tnan that adopted by the Court in Belgium